At the February 28 Hoffinger Criminal Justice Forum, Professor Sharon Dolovich of UCLA School of Law discussed "Incarceration American Style," acknowledging in the course of her talk that her argument was a dark one. Dolovich offered a theory for understanding the U.S. penal system that was, she said, consistent with how the system actually works rather than how public discourse says that it works.

Dolovich asserted that, while the justifications for punishment are typically deterrence, retribution, and incapacitation, her findings indicate that a more truthful justification may be a pairing of exclusion and control that continues even after a prisoner is released. Within prisons, Dolovich said, both overcrowding and punitive isolation cause mental and emotional damage, as does the constant threat of violence from other inmates. Those factors, coupled with a lack of sufficient mental health resources and other factors, make the challenge of post-release reintegration into society that much more difficult. “These aren’t things that we would do to people that we view as moral equals, as full citizens, as full human beings,” she said, adding that the only logical explanation for what occurs is a system committed to excluding convicted criminals from the rest of society permanently.

Meaningful consideration of parole, Dolovich continued, has dropped precipitously in recent decades, despite figures indicating extremely low recidivism rates. At the same time, life-without-parole sentences have increased significantly. “The message is that people in prison must and will be kept behind bars as long as the state can possibly keep them there,” she said, “if the imperative, in other words, is one of exclusion. Once a person has been marked out as a criminal, it somehow seems intolerable that they might one day leave that designation behind.”

The final strike against those who do time, Dolovich argued, was the added burden of collateral consequences stemming from criminal conviction. Apart from the natural obstacles to reentry, such as social stigma and frequent socioeconomic and educational disadvantages, she said, the state imposes even more burdens, such as disenfranchisement and the denial of welfare benefits. A project by the American Bar Association’s Criminal Justice Section has identified more than 38,000 state and federal restrictions on former prisoners, she added.

“I’m not trying to suggest that criminal punishment serves no legitimate public purposes,” Dolovich said. “The point is simply that given the highly imperfect fit between the standard justifications and what the state actually does to the people that it punishes for crimes, it seems clear that something else is going on.... America today is a carceral state, and in this carceral state exclusion-and-control has become the first-line policy response to a range of social problems.”